NFLPA's Letter to Roger Goodell & What It Means

It was a foregone conclusion Adrian Peterson would appeal the suspension handed down by Roger Goodell. Goodell suspended Peterson without pay for the remainder of this season and directed Peterson to enroll and engage in a treatment plan put together by the NFL.

Goodell’s punishment also included Peterson’s time spent on the Exempt List. So in all, Goodell suspended Peterson 15 games and a six-game fine.

The NFLPA’s general counsel, Tom DePaso, wrote a five-page letter to Goodell, which served as Peterson’s notice of appeal pursuant to the CBA. In the letter, DePaso stated with specificity the issues Peterson would be appealing, along with a detailed timeline of the events that have taken place since Peterson’s indictment.

PETERSON'S ARGUMENTS

Ex Post Facto Discipline

Peterson’s first ground for appeal is based on ex post facto punishment. Ex post facto means behavior is punished now when it wouldn’t have been punished when it was originally done.

In Peterson’s case, the argument is he should be disciplined under the CBA as it was written in May of 2014 (when he hit his child), not under Goodell’s August 28 “domestic violence” letter. Peterson was indicted on September 11. Because Peterson is being disciplined for his actions (beating his child), the May date should control. “Should” being the operative word.

Some of you may be confused about the retroactive application of Goodell’s August 28 letter compared to the new substance abuse policy that was applied retroactively earlier this season with guys like Wes Welker and Josh Gordon.

The key distinction between Goodell’s August 28 letter and the new substance abuse policy is the new substance abuse policy was collectively bargained (between the NFL and NFLPA) whereas Goodell’s August 28 letter was not. Goodell simply made new rules for the players without the players’ input.

Disparate Treatment

Peterson’s next ground for appeal is that his indefinite suspension “is wildly disparate from that of any previous similarly situated employee, and therefore cannot stand.” DePaso cited “selective enforcement” as the basis for this ground. Peterson is saying that he should be treated similar to how other players have been treated in his circumstances. DePaso argued that no NFL player has received more than a two-game ban for domestic violence except Ray Rice.

This argument ignores the league’s new stance on domestic violence. It also ignores the fact that there is no set discipline in the new or old personal conduct policy. What is deemed appropriate discipline is left on the desk of Roger Goodell.

Peterson is also challenging the new disciplinary process inaugurated in Peterson’s case. Specially, DePaso is challenging the November 14 hearing that Peterson refused to attend. Customarily, the player and Goodell have a “sit down” and go over what occurred and what the punishment will be.

In Peterson’s case, Goodell enacted a new system whereby some type of unprecedented hearing would occur, including having “outside individuals” participate in the hearing. This is a non-issue except Goodell cited not knowing Peterson’s current attitude with respect to his actions. Still, it’s a minor issue that is likely to be disregarded by the arbitrator.

Neutral Hearing Officer for Appeal

DePaso also demanded that Goodell recuse himself and anyone from Goodell’s office from hearing Peterson’s appeal. DePaso explained that Goodell and his office have shown that “[t]here is simply no way for you to impartially arbitrate Mr. Peterson’s appeal.”

The hint of all hints came in the second-to-last sentence in DePaso’s five-page letter. DePaso said if Goodell or “anyone associated with the NFL” issued a decision in Peterson’s appeal, it would not “be enforceable under the Labor Management Relations Act or the Federal Arbitration Act.”

What that means, in no uncertain terms, is that Peterson is planning on taking his case to federal court.

The Labor Management Relations Act gives federal court authority to enforce collectively bargained agreements, such as the NFLPA/NFL’s CBA. And the Federal Arbitration Act is used to challenge decisions made by arbitrators when there is evidence of “partiality or corruption in the arbitrators.”

The NFL used the Labor Management Relations Act when Kevin and Pat Williams (Minnesota Vikings) filed suit against the NFL in the Star Caps case.

Peterson’s appeal is based on and is challenging not only the discipline Goodell handed down, but also Goodell’s direct actions (unilaterally changing the Personal Conduct Policy). Just as in the Ray Rice case, the NFLPA will call Goodell (or at least should) to testify about his action of unilaterally changing the policy. That alone should make Goodell understand he is ill suited to hear the appeal. If Goodell exercises his right to hear Peterson’s appeal, you will soon see Peterson v. NFL, et al.

If only Goodell would’ve collectively bargained the changes to the Personal Conduct Policy. He was just under too much fire and had to do something to quickly appease the lynch mob that was forming at his front door.

Cedric Hopkins runs this sports law/fantasy football blog. If you have issues with it, it's all his fault. Cedric was an athlete-student at the University of New Mexico (Basketball - Go Lobos!). He then morphed into a student-athlete when he attended law school in San Diego. Age replaced athleticism and now he writes appellate briefs for criminals (alleged criminals, of course) in state and federal cases, including writing U.S. Supreme Court briefs.

For years Cedric has researched and written about legal issues but maintained a love for sports. With FieldandCourt.com, he's combining his two passions: researching and writing about sports. When he's not in court arguing a case before a judge (or writing about himself in the third person), he'll be doing the same with his articles on FieldandCourt.com. Follow me, er, him on Twitter (opens in a new window).

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Cedric Hopkins runs this sports law/fantasy football blog. If you have issues with it, it's all his fault. Cedric was an athlete-student at the University of New Mexico (Basketball - Go Lobos!). He then morphed into a student-athlete when he attended law school in San Diego. Age replaced athleticism and now he writes appellate briefs for criminals (alleged criminals, of course) in state and federal cases, including writing U.S. Supreme Court briefs.

For years Cedric has researched and written about legal issues but maintained a love for sports. With FieldandCourt.com, he's combining his two passions: researching and writing about sports. When he's not in court arguing a case before a judge (or writing about himself in the third person), he'll be doing the same with his articles on FieldandCourt.com. Follow me, er, him on Twitter (opens in a new window).